Last week the Supreme Court rendered the much-awaited judgment in R (PRCBC and O (by her litigation friend AO)) v Secretary of State for the Home Department

 (‘PRCBC’), upholding the capacity for the government to set the fees as it pleases (subject to approval by both Houses of Parliament) for citizenship applications under Section 1(4) of the British Nationality Act 1981 (‘the 1981 Act’), pursuant to Section 68 of the Immigration Act 2014 (‘the 2014 Act’). The Supreme Court appears to have taken an even more rigid stance – and with potential far-reaching implications – on the question of the legality of the Fees Order, by which the citizenship application fees are set, than the Court of Appeal, whose decision has already been critically analysed in an excellent post on this blog in May last year. In this respect, the decision of the Supreme Court is striking from more than one perspective and can arguably be understood as another confirmation – and perhaps the most vivid yet – that we might have indeed entered a ‘shallow end’ phase of the jurisprudence of the Court vis-à-vis governmental action. At the same time, as I will argue in this post, the judgment actually betrays the theoretical and pragmatic limits of the political constitutionalist doctrine in which it appears to be firmly rooted.

Background

The claimant, O, was born in the UK in 2007 and has never left. She has Nigerian citizenship, but since turning ten she has satisfied the requirements to apply for registration as a British citizen under section 1(4) of the 1981 Act. The SSHD however refused to process her application, as her mother could only raise £386: enough to cover the administrative cost of processing the application, but not to cover the full amount of the fee, at the time set at £973 (it is now £1,012). O, joined by The Project for the Registration of Children as British Citizens, challenged the level at which the registration fee had been set, claiming it was ultra vires. While the High Court declared the Fees Order unlawful (but refused to quash it) on the grounds that the Secretary of State had failed to discharge her statutory duty to have regard for the welfare of children in setting the fees, both the High Court and the Court of Appeal dismissed the substantive claim, electing to be bound by the precedent in R (Williams) v Secretary of State for the Home Department [2017] EWCA Civ 98; [2017] 1 WLR 3283.

The Supreme Court initially refused a leapfrog appeal from the High Court, so that the Court of Appeal could have the opportunity to consider Williams in light of the landmark judgment in R (UNISON) v Lord Chancellorof the same year. One can only speculate as to whether the Supreme Court judges (at the time) had a particular expectation in giving this opportunity to the Court of Appeal. Be that as it may, the Court of Appeal found that the decision in Williams had not been ‘overtaken’ by UNISON and rejected the appeal. First, while UNISON involved the ‘fundamental’ or ‘constitutional’ right of access to court, no such fundamental right was at stake in Williams/PRCBC, and thus the special rules of statutory construction precipitated by the principle of legality (in its classic or ‘augmented’ form) did not bite. Second, UNISON endorsed the ‘constitutional principle’ established in R v Secretary of State for Social Security, Ex p Joint Council for the Welfare of Immigrants[1997] 1 WLR 275 (at 290 per Simon Brown LJ) that ‘specific statutory rights are not to be cut down by subordinate legislation passed under the vires of a different Act’. The Court of Appeal, while upholding the principle in JWCI, argued that in the present case (as in Williams) the delegated legislation was explicitly authorised by the same primary legislation that conferred the specific statutory right, and that the imposition of a fee for the validity of the application was part of the statutory purpose and intent and thus not ultra vires (no matter at what level set). This brings us to the third way in which UNISON could have been relevant for Williams/PRCBC: in UNISON, the standard applied to evaluate the legality of the tribunal fees was one of reasonable affordability, whereas the reasoning of the court in Williams seemingly applied a much looser ‘impossibility’ test.

I will now discuss, in reverse order, each of these points.

The £1 million application fee: British citizenship as Willy Wonka’s ‘golden ticket’?

In Williams (para 49), counsel for the government conceded that the Secretary of State ‘could not simply stipulate an application fee of, say, £1 million’. This could be interpreted as confirming that the power of the SSHD, in setting the fees via secondary legislation, is not legally unlimited, and that she cannot ‘make regulations which will in practice make it impossible for applicants to succeed in their applications for citizenship’ (my emphasis). But what does ‘impossible’ mean? This point was argued magnificently in the previous post on this blog. To put it in a nutshell: setting a ‘practical impossibility’ threshold at which the upper level of the fees is deemed illegal allows the fees to be set at a level which is unaffordable for all but a very small part of the population, in a way that is utterly detached from the actual economic conditions of the right-holders in question. In other words: for the Court of Appeal an ‘unaffordable’ fee is not an ‘impossible’ one – given that a destitute individual (or their family) could always in theory somehow find the means in the future to afford it. This is in stark contrast, as we said, with UNISON, where the standard applied was that of ‘reasonable affordability’. 

One could have expected, therefore, the Supreme Court to reconsider the decision in Williams/PRCBC, given the inherent problematic nature of the ‘impossibility’ standard therein applied. Instead, the Court has decided to double down on Williams, in that it highlighted that the 2014 Act – in imposing the criteria to which the SSHD must have regard in setting the application fees – did not include affordability as one of them. Rather, the SSHD was expressly authorised to see the fees at a level which (i) took account of benefits likely to accrue from citizenship and (ii) could subsidise the cost of the exercise of other functions in connection with immigration or nationality. As a result, and in this respect going beyond the reasoning in Williams, there seems to be no juridical (as opposed to political) limits to the power of the SSHD to set the application fees according to the Supreme Court.

Two further observations can be made. First, criterion (i) appears to have been used in opposite ways: while in Williams it was considered as the criterion which could set the limits of the power of the SSHD to set the fees (para 50), it now constitutes instead merely one of the two bases on which the SSHD can set fees substantially in excess of application processing costs. Second, the policy justification behind the addition of criterion (ii) was that of ‘moving part at least of the financial burden of such functions from the UK taxpayer to the applicants’ (UKSC PRCBC, para 49). But do only British citizens pay taxes? The key (and morally questionable) reasoning in Williams is precisely that, even if a child is destitute at the time at which she becomes eligible for registration as a British citizen, she won’t necessarily remain destitute later in her life, whether because of gaining paid employment or because of ‘a gift or loan from other family members or well wishers’ [sic] (paras 49-51). If children entitled to citizenship manage to ‘leave’ destitution thanks to gainful employment, then they will be asked effectively to save to pay the application fees in addition to paying taxes, putting before them very difficult choices and, as a result, most likely protracting their state of precarious living conditions.

Statutory rights can now be effectively removed via secondary legislation without explicit words: the Supreme Court overrules JCWI (and UNISON)

Perhaps the most striking aspect of the Supreme Court decision in PRCBC, from a strict public law doctrinal perspective, is the overruling  of the constitutional principle, established in JCWI and endorsed by the (unanimous) Supreme Court in UNISON, that specific statutory rights are not to be cut down by subordinate legislation passed under the vires of a different Act. The Court of Appeal in Williams and PRCBC had sought to argue that the requirement of a fee was part and parcel of the statutory entitlement to citizenship created by the 1981 Act itself and that therefore the principle in JCWI did not apply, while explicitly endorsing it (CoA, para 61). Now instead the Supreme Court tells us (paras 40-43) that the principle is ‘incorrect’. 

Lord Hodge sees the principle as contradicting one of the most basic tenets of UK constitutional law, namely that ‘Parliament can legislate either expressly or by necessary implication to amend or repeal a previously enacted statute’ (para 40). As such, a subsequent statute can empower the executive to make subordinate legislation which restricts or removes rights conferred by an earlier statute, either expressly or by necessary implication. This is nothing but a straightforward application of the orthodox theory of parliamentary sovereignty. For Lord Hodge, what Lord Reed called a ‘constitutional principle’ must be rather understood as a ‘prima-facie’ ‘assumption’ or ‘presumption’ that courts must merely take into account in performing the interpretive task vis-à-vis the statute that authorises the delegated legislation in question. And this must be always the case, unless a ‘fundamental’ or ‘constitutional’ right is engaged by the relevant legislation which would instead trigger the special rules of statutory construction demanded by the principle of legality.

How cogent is Lord Hodge’s reasoning here? His Lordship argues that this is, ultimately, a matter of interpreting the extent of delegation of decision-making power from Parliament to the executive in the subsequent statute. If the delegation of power is ‘wide’ enough and authorises the relevant secondary legislation (that is, if this latter is within the vires of the authorising statute), it does not matter that the secondary legislation in question has the effect of making statutory rights conferred by an earlier statute nugatory. That is, simply, parliamentary sovereignty at work. Or is it?

If Parliament confers rights through legislation, it is logical to assume that some individuals will be right-holders. It is not at all problematic, in this respect, to envisage a situation in which a later Parliament might want to remove a right conferred at an earlier point in time. But how that change is effected matters. If the later Parliament does so through explicit language, no immediate problem arises in a system without strong constitutional review from the point of view of legality. Parliament is exercising its constitutional authority and accepts the consequences of its decision. Could Parliament do so indirectly but always explicitly, i.e. by expressly authorising the executive to remove such earlier rights via delegated legislation? In theory, yes, albeit if the purpose is that of removing a right, it is not readily clear why Parliament would not do it directly via primary legislation. 

This leads to the much more problematic case of the removal of statutory rights via ‘necessary implication’ effected through secondary legislation adopted under the vires of a different and later statute, as it was the case in Williams/PRCBC. It is safe to say that this is indeed the type of scenario the principle established in JCWI and endorsed in UNISON was meant to capture – a statutory right which is made nugatory by the exercise of delegated legislation that affects the practical conditions of its entitlement or enjoyment, as in the case of the imposition of fees that are unaffordable for a significant part of right-holders. 

In other words: it is quite the leap to hold that a power to impose fees related to an entitlement to a statutory right can simply be the same as the power to remove such entitlement – and thus the underlying right – altogether. And yet this is what the Supreme Court is now apparently saying. This basic observation holds even if, as with this case, the power to set fees explicitly allows going beyond the cost of the application and does not explicitly mention ‘affordability’ as one of the criteria the executive must take into account as part of the determination. For otherwise we would live in a legal system where there are ‘specific’ rights but not right-holders – a manifest contradiction in terms, and evidently what the limb of the principle of legality established in JCWI and endorsed in UNISON was supposed to avoid by requiring explicit language in primary legislation to remove statutory rights. The idea that there can be an implicit ‘Henry VIII’ power of this scope is highly troubling, and runs against the thrust of the reasoning in Cherry/Miller (No 2).

The unaffordable status of citizenship and the limits of constitutional doctrine

This brings me to the final criticism of the Supreme Court’s decision. In the hierarchy of rights under our constitutional arrangements – fundamental or constitutional common law rights, convention rights, and ‘mere’ statutory rights – the Court tells us that the right to be registered as a British citizen (and the rights that ensue from it) falls in the latter category. This is highly problematic for at least three reasons. First, because it is doubtful that the ‘entitlements’ contained in the last category can still be meaningfully understood as ‘rights’, as now they can apparently be made nugatory by delegated legislation contained in a completely different statute and without explicit wording to that effect. The idea of a ‘right’ whose entitlement to (or enjoyment of) is conditional on an unmeetable condition is dangerously close to a contradiction in terms. 

Second, this decision reignites the debate as to the lack of systematicity in the recognition and protection of ‘fundamental’ or constitutional common law rights by the courts. In particular, it is baffling that certain rights like freedom of speech are afforded special protection by the common law precisely because of their link with the democratic nature of our society (R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696), while the right to the very status upon which the exercise of political rights is conditional – and thus the realisation of the principle of political equality – is not. 

And this is where the third issue lies: it is hard to reconcile the Supreme Court’s decision in PRCBC with the recognition by the same Court in Pham v Secretary of State for the Home Department [2015] UKSC 19, of citizenship as a ‘fundamental status’ at common law (paras 60, 97). How can one have a mere statutory entitlement, fully displaceable by delegated legislation, to a fundamental status? In what way is the status fundamental, if individuals who are entitled to it can simply be priced out of it?

The answer from Lord Hodge (UKSC PRCBC, para 51) is terse:

The appropriateness of imposing the fee on children who apply for British citizenship under section 1(4) of the 1981 Act is a question of policy which is for political determination. It is not a matter for judges for whom the question is the much narrower one of whether Parliament has authorised the Secretary of State to set the impugned fee at the level which it has been set.

This line of reasoning is necessarily premised on the superiority of the British Parliament, under the orthodox understanding of our constitutional arrangements, because of its democratic legitimacy. Policy choices are for MPs, and not for judges, because only the former are elected and are directly answerable to the electorate. That is the kernel of the orthodox doctrine of parliamentary sovereignty.

Yet, one needs to be a citizen to vote. The fact that UK electoral laws are inclusive and recognise the right to vote even in general elections to certain categories of individuals living in the UK but who are not British citizens (eg Irish, certain Commonwealth nationals), does not sever the causal link between holding a relevantcitizenship status and the right to vote.

It bears repeating: the right to political participation, which instantiates the principle of political equality and legitimises the role of Parliament as the primary law-making institution under our constitutional arrangements, is conditional on holding the status of citizen. As such, someone who has lived their entire life in the UK, is part of the community, and is expected to obey laws and pay taxes, has an absolute moral entitlement to participate in the creation of those rules that will then bind her. Otherwise, it is not really a democracy for her(and for all those in the same condition).

Conclusion

It is safe to say that one of the functions of the 1981 Act, in the context of the reform to jus soli, was precisely to make sure that those children born from non-UK nationals with actual and meaningful ties to the UK – because they were born and grew up here – could retain British citizenship, while making it harder for those without such ties to obtain it. This, and the connection between the status of citizenship and political representation, make it very difficult to agree with the judgment of the Supreme Court in PRCBC. To be sure, the judgment is not just disappointing. It also represents an abdication of sound constitutional principle – that statutory rights cannot be rendered nugatory via delegated legislation – at the altar of the current institutional and political context. At the same time, the judgment ends up betraying the limits of the orthodox constitutional doctrine upon which it is based. Destitute children born in the UK who are entitled to British citizenship might never have the financial means to pay the fees to register as such, and thus might never enjoy the right to co-determine that very policy that prices them out of political representation. Our constitution is said to be political, but for whom?

My gratitude goes to Michael Gordon, Martin David Kelly, Anastasia Shesterinina, and Alison Young for their incredibly helpful comments on previous versions of this post.

Dr Paolo Sandro is a Lecturer in Law at the University of Leeds 

(Suggested citation: P. Sandro, ‘A political constitution, but for whom? Citizenship fees, legality, and the limits of doctrine’, U.K. Const. L. Blog (23rd February 2022) (available at https://ukconstitutionallaw.org/))